Discrimination Against Children

All board members know the general rule: It is unlawful for an association to discriminate against children, or to discriminate against residents on account of their minors. The California Supreme Court first prohibited discriminating against families with children in 1982, relying on the California Unruh Civil Rights Act, in the seminal case of Marina Point v. Wolfson.

While boards and management companies understand that such age discrimination is illegal, avoiding it in one’s everyday ownership or management of a homeowners association building is not easy. Often the printed provisions in the house rules and regulations inadvertently violate the law.

For example, ask yourself whether any of the following would constitute unlawful discrimination if included in the rental agreement or the house rules:

Children using the common areas are to be under adult supervision at all times.

No skateboard riding, scooter riding, jump roping, running, playing or screaming is permitted in the common areas.

Children under 18 shall not use the swimming pool without an adult in attendance.

Children 12 and under shall not use the swimming pool without an adult in attendance.

Minors shall not use the exercise facilities in the recreation room without adult supervision.

Persons 17 and under may not loiter in the common areas of the building after 10 p.m., but instead must be inside their units. What do you think? Would any of those requirements be illegal discrimination? Which ones?

The answer is: All of them are likely to constitute unlawful discrimination under both Federal Law and California State Law.

The Two Major Types of

Discrimination Against Children

There are two major types of discrimination against children, namely: those acts that intentionally discriminate and those which have an adverse disparate impact on minors.

A rule which provides that children are at all times to be supervised by an adult would constitute intentional discrimination. In other words, the board intends that children are to be treated differently than adults when they are present at the complex.

Discrimination based on disparate impact means that even if the board’s practices were intended to be neutral and not designed to discriminate, they nevertheless have a disproportionate effect on children. For example, a rule which provides that no person be allowed to play with Barbie dolls in the outdoor common areas of the property would obviously be disparate treatment of children (and probably of girls more than boys), because adults rarely play outside with Barbies.

Further Examples of Illegal Discrimination

Here are some less obvious examples of potential age discrimination against children:

A house rule which provides that scooter riding and skateboarding are prohibited on the common areas would likely result in disparate treatment. If a case based on that rule were brought to court, and the testimony of the tenant’s expert witness demonstrated that children are much more likely than adults to ride scooters and skateboards on the common areas than adults, then the provision would likely be unlawful. In other words, even though the landlord may not have intentionally instituted the rule to be directed at children, the impact of the rule primarily affects kids.

Another example is a house rule that prevents anyone from playing, running or screaming through the hallways of the building. Almost always it would be minors, rather than adults, who run, play and yell in hallways. A better way to phrase the rule would be to prohibit all conduct in the hallways that unreasonably disturbs the quiet enjoyment of other tenants. Concerning swimming pools, there is a surprising trap for the unwary. California Code of Regulations, Section 65539(c) provides that where no lifeguard service is provided, a warning sign must be posted which says: “Warning – No Lifeguard On Duty” and that “Children Under The Age Of 14 Should Not Use Pool Without An Adult In Attendance.”

A board or management company reading that regulation might conclude, albeit erroneously, that it can lawfully promulgate and enforce a rule that children 13 years or younger are barred from using the swimming pool without adult supervision. After all, if the State of California thinks that 13-year-olds and younger should not swim or play in a pool without adult supervision, surely that a landlord could institute and enforce such a rule.

Not true. The law does not allow a board to impose a pool rule of adult supervision of children of any age. That is up to the parents to decide, so say our courts. For example, perhaps a mature 16-year-old with lifeguard training would be a better choice for supervision than an 80-year-old adult, but the teenager would not qualify under the landlord’s “adult supervision” rule.

Also, our courts point out that there are numerous children younger than 14 who can swim far better than many adults and are much less likely to drown.

A good alternative way to phrase the swimming pool rule is: “All persons must have adequate swimming ability to use the pool or be accompanied by a person with adequate swimming ability.”

Defense To Claims of Child Discrimination

The principal defense to a lawsuit against child age discrimination is that (1) there is a compelling business necessity for the rule, and (2) the rule implemented is the least restrictive means of achieving it.

Thus, a swimming pool rule which prohibits non-toilet trained children from using the pool or babies in diapers from wading or swimming in it may be enforceable. That is because body excrements, and in particular feces, jeopardizes the health of everyone else who uses (and sometimes accidentally swallows) the water. The board’s compelling business interest is to protect the health of other tenants and the imposition of the rule, it seems, is the least restrictive means available.

However, even that rule is not without controversy. In one case, an administrative law judge held that the condominium homeowners association could have implemented a less restrictive rule against children, such as: “Any person who is incontinent or not fully potty trained must wear appropriate waterproof clothing when entering or being carried into the pool.” There, the judge imposed a $1,500 penalty on the HOA for unlawful discrimination against children.

Expert witness may be used to testify that even so-called waterproof clothing is not “foolproof” clothing and bodily excrements in the water are hazardous to health. In other words, even though the diaper generally functions appropriately on a non-potty trained person (i.e., a baby or very young child), it may from time to time leak, have a defect, or otherwise be improperly worn. Thus, it could be argued that the enjoyment of using the pool to a non-potty trained toddler wearing a customarily reliable waterproof panty is substantially outweighed by the possibility that it may fail and thereby create a health risk to many others who swim in the water.

Whatever the prohibition, if it primarily affects children, the burden will be on the board or management company to prove that the regulation it imposes is neither overly broad nor unduly restrictive. The onus is also on the board or management company to prove that it has a compelling business purpose for the rule and that rule is the least restrictive means to achieve the intended outcome.

Money Damages for Discrimination

Substantial money damages are awardable to both adults and children for injury they suffer from unlawful child discrimination. Such “injury” includes humiliation, embarrassment, emotional distress, inconvenience and loss of enjoyment of life.

Judges and juries in both the State and Federal Court systems are empowered to award substantial monetary damages against HOAs who discriminate against families with children even if the discrimination was merely negligent and inadvertent. For that reason, it is not uncommon that adult residents in condominium projects (through their lawyers) demand, say, $15,000 apiece against an HOA and their children demand $7,500 each. (Adults may sustain more emotional distress seeing their children being discriminated against than the children themselves suffer.)

Adding salt to the board’s wound, the residents’ attorney is entitled to an award of his reasonable attorney’s fees to litigate the case, which compensation may well exceed $200,000.

Problems with Insurance Coverage

In discrimination cases, insurance carriers often try to deny liability (meaning that the board will have to pay all damages itself), on the basis that the discrimination was intentional. An insurance company issuing a general liability policy to a board or management company is not required to pay damages based on any act of intentional wrongdoing, such as intentional discrimination.

The procedure that carriers initiate to eschew liability coverage is to mail out a “cumis counsel” letter to the insured owner or company. A “cumis” letter is correspondence that advises the recipient that he has a right to hire independent counsel (with a portion of the fees paid by the insurance company) due to the inherent conflict of interest between the carrier’s appointed lawyer and the insured.

The conflict is that if the lawyer appointed by the insurance company to defend the insured does not properly present the defense, the board’s discrimination may be found to be intentional, rather than merely negligent. A Court’s or jury’s finding of intentional discrimination will absolve the carrier from having to pay any monetary damages, whereas a finding of innocent discrimination may compel the insurance company to pay the judgment.

After receiving the cumis letter, if the board then hires its own private attorney (typically a wise thing for the insured to do) to co-defend him along with the insurance company lawyer, private counsel will focus on and be more circumspect to ensure that any finding of discrimination is mere negligence, and therefore covered under the insured’s policy.

RECOMMENDATIONS

Often there is no clear black and white demarcation of exactly what rules constitute unlawful child discrimination and what rules do not. Not only are boards frequently confused, often so are their lawyers, particularly with the “disparate impact” type of discrimination.

To best avoid discrimination against children, here are the recommendations to board members:

Carefully review your house rules and regulations. If there is any mention of children, either remove the reference or at least obtain approval of the provision from qualified counsel.

If there is any prohibition against playing, loitering, lounging, running, bike riding, skateboarding, scooter riding, roller skating, skip roping, yelling, screaming, talking loudly or other generic activities in the common areas which might occur more frequently with children than with adults (e., adverse disparate impact against children), either remove the verbiage or obtain approval (or rejection thereof) by counsel.

Have an experienced attorney practicing in that field of law review your entire house rules and regulations to ensure that they do not contain any type of child discrimination, whether intentional or inadvertent. Is the rule aimed at protecting children’s health and safety? Rules that should really apply to everyone do not pass this test. For example, a rule banning children from acting rowdy in the common areas unfairly singles out children. The idea of banning rowdy behavior in the common areas is fine, but why not ban rowdy behavior altogether, regardless of whether it comes from children or adults?
Also, be wary of rules that may appear to be aimed at protecting children because they are lumped in with other rules that are. For example, chances are if your building has a pool, it also has a set of pool rules, many of which protect children (for example, by requiring adult supervision below a certain age). However, a rule banning children from the pool during certain hours is probably aimed at giving adults a chance to enjoy the pool alone — not at protecting children from harm.

Is the rule reasonable? If you have answered “yes” to the first question, the rule is probably legal. However, it is possible that a rule aimed at protecting children goes a bit too far. For example, requiring all children under 18 — including high school students — to have adult supervision when using the pool is a bit far-reaching in its attempt to keep children safe.

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